North Yorkshire Moors Railway General Discussion

Like Tom, I am not a lawyer, except in the mess room. However, my understanding of the requirements for gift aiding admissions is the same as Tom's and applies to everyone in that it is a donation 'freely given.' Doesn't this whole subject go back to a court case between HMRC (whatever they were called then) and the National Trust some good few years ago and is the origin of the suggestion that people are 'viewing the property'. The NT practice was that admissions were being treated as donations which HMRC said wasn't legitimate and the NT successfully argued that, in return for making a donation, the NT were letting the donor view the property, which was not unreasonable. However, you couldn't simply let someone in who paid the same amount as the admission price and gift aided it as someone who couldn't/wouldn't gift aid to everyone had to make a donation 'freely given' or pay more than the entrance fee, hence the 10% alternative.

 

See my post 4721 above, in which I tried to explain my understanding. Where the 10% (or more) applies, the person is not buying an admission ticket, he is simply making a freely given donation and that donation is the whole amount. In return he gets to view the property. Others, who don't want to make a donation, can pay for an entrance fee. What I'm not certain about is the reason for the 12 months requirement but that is probably because it is deemed to be a membership subscription with 12 months validity. Membership subscriptions qualify for Gift Aid providing the following conditions are met:

• payments do no more than secure membership of the charity
• payments do not secure a right to personal use of any facilities or services provided by the charity (other than the 'right to view the property')

It is quite logical really.

 

Gift aid on membership? Interesting...

 

In years gone by I'm sure that I covenanted my membership fee, which iirc had much the same outcome as gift aid. Presumably that is no longer possible.

 

On the other hand, if you had been a supporter of the NYMR for over 50 years, and quite closely involved for much of that time, and were dismayed by the unheeding managerial shambles that seems to be lurching towards insolvency that it seems to many of us to have become, wouldn't you too feel justified in voicing your concerns? It's true that we don't know all of the decision making processes, but the consequences of them are all too apparent.

 

My understanding is the the NYMR is able to recover Gift Aid on Trust membership subscriptions.

 

If they haven't explicitly stated that, I suspect you're making a category error in presuming that this is to do with the interpretation of a consumer contract (byelaws are a separate issue).

Stepping back and looking at this in the round, rather than from the perspective of "what does NYMR want to achieve", it seems to me that the question of admission is about access to view the workings of the charity, which requires the be admitted to travel over the line. That is not a condition as you describe, but of the definition of "admission".

Unless it is part of what was explicitly agreed with HMRC as part of the agreement that allows NYMR to claim Gift Aid in this way, I struggle with the way that a definition of admission has been struck is being used to infer the role of T&Cs.

Going deeper, I'm interested that "admission" is being defined in quite so precise a way. When visiting Chatsworth, I was able to choose from a range of tickets that granted me admission to varying parts (e.g. house & garden, garden only) and claim Gift Aid on those. It's descending to a deep level of pedantry, but I suspect that if the bounds of admission could be defined there, it would be possible to do so at NYMR - albeit at the cost of extra complexity.

 

NYMR did on mine whilst a member.

 

Yes, in an ideal world your Chatsworth options would be replicated on the NYMR without the requirement for "admission" to Whitby. Unfortunately HMRC were adamant that it had to be the opportunity to view all the work of the charity. Much of that is accessible fee of charge i.e.access to stations, the MPD and lineside viewing. The only additional "right to view the property" involves the issue of a ticket permitting the donor to travel by train. In essence the question being posed by the prospective donor is "Can I ride on a train to see the work of the charity to which there is otherwise no access?" The straightforward answer is "Yes if you pay the fare or make a donation of the same amount". Either way consideration is changing hands to enable an otherwise unavailable facility to be provided. That can only create a contract where the service is the supply of that facility.

 

Thank you for the elaboration of the context, and having worked with HMRC in the past, I completely understand why the discussion could only go so far!

I do however stand by my view that the introduction of charity law and Gift Aid means that the straightforward(!) application of consumer law and contracting principles cannot be taken as read.

Now, if the High Court were to rule that despite calling an admission payment a donation, it is in fact a payment for services rendered, I'd gladly line up with you - especially if they then ruled that this covered the point about refunds of donations by charities. Such a ruling would admit that a spade is indeed a spade. To the best of my knowledge, they haven't, and I therefore take the view that if a payment is called a donation, it is in law a donation and subject to the provisions that apply to charities and donations.

That, incidentally, may also be a point worth exploring in dealing with the related issue of cooling off periods - whether to get payments to charities properly defined, or to go the other way and get legal certainty that if it's called a donation, it really is a donation.

PS - if you think this is complex, just look at the Gift Aid rules as they apply to donations in kind which are sold by a charity Despite all appearances to the contrary, I retain title to the stuff I dropped off at BHF the other week until it's sold, at which point it becomes my financial donation to them, with correspondingly bonkers accounting.

 

I hear that today and per RTT appears another day of excellent timekeeping despite only running Gosthland-Whitby .

1421 arrival in Whitby arrived 1505.
All passengers put on Northern service to avoid delaying it.

 

What NT service? RTT shows nothing NT leaving Whitby between 1159 and 1557

 

1557 ..delayed so Northern could arrive on time .NYMR departed 1630 behind it .

 

Yes Membership can be gift aided as well as:
- make a donation (10% above standard ticket price ) to enable admission to see the museum, or
- make a donation to see the museum over the following 12 months
In 2023 and 2024 NYMR were following the 12 month pass option but for 2025 it will be the 10% donation on top of the regular fare. As Lineisclear said earlier, HMRC insisted that the museum in the case of NYMR’s 12 month pass included the full length Pickering to Whitby (even though Grosmont to Whitby is Network Rail). Hence why for 2023/24 there were just three tickets then available (as per HMRC dictat)
- all line rover (equivalent to NT house and garden), gift aid asked and 12 month annual pass offered irrespective of gift aid response
- two stop return (equivalent to NT house)
- one stop return (equivalent to NT garden)

As I’ve said earlier, a 12 month annual pass gift aid model is not possible on a 5 day railway (lack of capacity on peak services given the observed level of returnees) hence a return to 10% donation (as previously offered). However the 10% donation model (with gift aid if possible) does allow more ticket options. Eg for 2025 a one stop single and a 12 month travel pass are now being offered.

 

Another fun day TTIing. At least the autocar was easily put into service to make four additional services between Grosmont and Goathland.

 

https://www.realtimetrains.co.uk/service/gb-nr:N50632/2025-02-21/detailed

Yes, the refunds will have been flying out today.

 

Not necessarily. They have to be claimed and if passengers have been looked after well that will often ensure that visitors leave content without claims for compensation or refund.

 

Coming back to this point - I think returning the donation is still problematic, regardless of whether you have processed the Gift Aid claim or not.

The key "time stamp" for the donation is when it was made - any subsequent admin (for example, filing the GA return) is irrelevant. So for a passenger buying a ticket in the morning, that is when they made a donation. This then becomes problematic if you process a refund (under the CRA) in the afternoon, since by that point, it is no longer the passenger's money, it is the Charity's funds. And there are strict controls about returning a donation. (https://www.gov.uk/guidance/accepting-refusing-and-returning-donations-to-your-charity). In outline, you can only easily return a donation if accepting it does not meet your charitable purpose (clearly not the case); the money came from the proceeds of crime (hard to prove in that scenario!) or the passenger was incapable of making an informed decision (very unlikely). Essentially it becomes a trustee decision whether to return the money (which can be delegated to staff), but the presumption is that you can't return funds which have been freely and lawfully donated for a purpose that meets the charity's objectives. By processing a "delay repay" type payment in the afternoon using funds that were properly donated in the morning, that is exactly what you are doing.

The whole interaction between Charity Law, Tax Law and Consumer Law feels like a complete minefield. But you can't pick and choose which law you feel has precedence; your scheme has to meet all applicable laws. I think that is why in all the examples of charities I quote above, they were unambiguous in their terms and conditions in stating that tickets were non refundable. The NYMR seems to be very much an outlier here in how it has chosen to give primacy to the Consumer Rights Act (and a very generous interpretation at that) over the relevant Charity or HMRC regulations.

The key point to me is that when you implemented a Gift Aid scheme, the nature of your transaction with the passenger changed from a purchase to a donation. Everything else follows from that point.

Tom

 

I ‘ m unclear Tom whether you’re trying to prove the unavailability of Gift Aid to any organisation that provides something in return for the donation or whether its the inapplicability of the Consumer Rights Act. Whether or not
HMRC and the Gift Aid rules deem payment for admittance to be a donation they can’t change contract law. The inescapable fact is that a payment has to be made for admittance. All the essentials of a contract to provide a service are present. In essence I suggest HMRC deeming the payment to be a donation doesn’t change its legal status.